McAndrew and Repatriation Commission - [2008] AATA 1061

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1061
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 2007/2468

VETERANS' APPEALS DIVISION

)

Re

KEITH McANDREW

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Mr R G Kenny, Member

Date27 November 2008
PlaceBrisbane

Decision

The Tribunal sets aside the decision under review and substitutes its decision that pension is payable at 100% of the general rate under s 22 of the Veterans’ Entitlement Act 1986 from and including 29 July 2005 and at the special rate under s 24 of that Act from and including 1 August 2005.

................[Sgd].....................
R G Kenny Member

CATCHWORDS
VETERANS’ AFFAIRS – veteran’s entitlements –veteran in receipt of 100% general rate pension – application for increase in pension – veteran now not able to undertake remunerative work for more than 8 hours per week because of war-caused conditions– veteran prevented from undertaking remunerative work that he was undertaking because of war-caused conditions alone – veteran suffering a loss of salary or wages or of earnings on his own account –– special rate of pension payable - decision set aside – determination of date of effect
Veterans’ Entitlements Act 1986 ss 5Q, 15, 19, 21, 22, 24, 119, 120, 157 and 177
Flentjar v Repatriation Commission (1997) 26 AAR 93
Sheehy v Repatriation Commission (1996) 137 ALR 223
Starcevich v Repatriation Commission (1987) 76 ALR 449
Re Draper and Repatriation Commission (1986) 12 ALD 167
Re Clare and Repatriation Commission (1989) 18 ALD 474
White v Repatriation Commission (2001) 114 FCR 494
Sheehy v Repatriation Commission (1996) 41 ALD 205
Repatriation Commission v Butcher [2007] FCAFC 36
Byrne v Repatriation Commission (2001) 33 AAR 410
Birtles v Repatriation Commission (1991) 24 ALD 545
REASONS FOR DECISION

27 November 2008

Mr RG Kenny, Member

BACKGROUND
1. On 29 July 2005, Keith McAndrew made a claim under s 15 of the Veterans’ Entitlements Act 1986 (“the Act”) for an increase in the level of pension paid to him in respect of incapacity from the following conditions accepted as being related to his eligible service with the Australian Regular Army (ARA): solar keratosis, bilateral sensori neural hearing loss, post traumatic stress disorder and alcohol dependence. His claim was rejected by a delegate of the Repatriation Commission on 14 July 2006 and pension was continued at 100% of the general rate. In so doing, the delegate determined that Mr McAndrew did not qualify for the intermediate or special rate of pension under ss 23 or 24 of the Act, respectively. That assessment decision was affirmed, on 26 February 2007, by the Veterans’ Review Board (“the Board”) and Mr McAndrew seeks further review by the Administrative Appeals Tribunal (“the Tribunal”).
ISSUES AND LEGISLATION
2. Matters in issue are to be determined to the Tribunal’s reasonable satisfaction and in accordance with substantial justice and the substantial merits of the case[1]. In that process, neither party bears an onus of proof[2]. The procedure to be followed is provided for in s 19…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McAndrew and Repatriation Commission

Details

AGLC: McAndrew and Repatriation Commission [2008] AATA 1061
Case: [2008] AATA 1061
Decision Date: 27 November 2008

CaseChat Overview and Summary

The case of McAndrew and the Repatriation Commission involved a veteran who had been receiving a 100% general rate pension and applied for an increase due to his inability to engage in remunerative work for more than eight hours per week because of war-related conditions. The veteran contended that his capacity to undertake work was limited solely due to these conditions and that he had suffered a loss of income. The dispute centred on whether the special rate of pension should be applied from a specific date and was heard by the Administrative Appeals Tribunal. The Tribunal had to determine whether the veteran's circumstances warranted a special rate of pension under the Veterans’ Entitlements Act 1986.

The legal issues revolved around the interpretation and application of sections 5Q, 15, 19, 21, 22, 24, 119, 120, 157, and 177 of the Veterans’ Entitlements Act 1986. The primary question was whether the veteran's reduced capacity to work was attributable solely to war-caused conditions and whether this justified a special rate of pension. The Tribunal also needed to ascertain the correct date from which the special rate should apply. Relevant precedents such as Flentjar v Repatriation Commission, Sheehy v Repatriation Commission, and Starcevich v Repatriation Commission were considered to guide the decision.

The Tribunal found that the veteran's conditions were indeed war-caused and that he had suffered a loss of income as a direct result. It concluded that the special rate of pension should apply from a specific date, which was determined to be 1 August 2005. The Tribunal set aside the previous decision of the Repatriation Commission and substituted its own decision, specifying that the pension should be payable at 100% of the general rate until 28 July 2005 and at the special rate from 1 August 2005 onwards. This decision was made after carefully considering the legislative framework and relevant case law.

The final orders of the Tribunal were that the decision under review was set aside, and a new decision was substituted, stating that the pension would be payable at 100% of the general rate from and including 29 July 2005 and at the special rate from and including 1 August 2005.

Orders

Orders of the court

The Tribunal sets aside the decision under review and substitutes its decision that pension is payable at 100% of the general rate under s 22 of the Veterans’ Entitlement Act 1986 from and including 29 July 2005 and at the special rate under s 24 of that Act from and including 1 August 2005.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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